Broadway Dramatists, Hollywood Producers, and the Challenge of Conflicting Copyright Norms
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Vanderbilt Journal of Entertainment & Technology Law Volume 16 Issue 2 Issue 2 - Winter 2014 Article 3 2014 Once More unto the Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, and the Challenge of Conflicting Copyright Norms Carol M. Kaplan Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Intellectual Property Law Commons Recommended Citation Carol M. Kaplan, Once More unto the Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, and the Challenge of Conflicting Copyright Norms, 16 Vanderbilt Journal of Entertainment and Technology Law 297 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol16/iss2/3 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Once More unto the Breach, Dear Friends: Broadway Dramatists, Hollywood Producers, and the Challenge of Conflicting Copyright Norms Carol M. Kaplan* ABSTRACT In recent decades, studios that own film and television properties have developed business models that exploit the copyrights in those materials in every known market and in all currently conceivable forms of entertainment and merchandising. For the most part, uniform laws and parallel industry cultures permit smooth integration across formats. But theater is different. The work-made-for-hire provisions that allow corporations to function as the authors of the works they contract to create do not easily align with the culture and standard contract provisions of live theater. Conflicts arise when material that begins as a Hollywood property tries to make Carol M. Kaplan is a Partner at Mitchell Silberberg & Knupp, LLP and a member of the firm's Entertainment & New Media and Intellectual Property & Technology practice groups. She has extensive experience advising clients in connection with exploiting their intellectual property assets within and across multiple platforms, including film, television, publishing, and new media, with a particular emphasis on live theater. Her theater practice covers every side of the business and her clients include commercial producers developing new works, institutional not-for-profit theaters, individual theater artists, as well as film studios and television companies developing, producing, and exploiting the live-stage rights in their library properties. Prior to joining Mitchell Silberberg, Ms. Kaplan was Counsel at Paul Weiss Rifkind Wharton & Garrison, LLP, and Senior Counsel at Nickelodeon Business and Legal Affairs. Ms. Kaplan has been published in the NYU Law Review and the Seattle Journal for Social Justice and is a frequent speaker on industry topics. The author would like to thank the board and staff of the Vanderbilt Journal of Entertainment & Technology Law for organizing and hosting the Performers' Rights Symposium in 2013 where she presented an early version of this paper, and in particular, Shane Valenzi and Mike Dearington who graciously offered their time and acting skills to enhance the presentation. She is also grateful to her fellow participants on the "Legal Issues in the Theatre Industry" panel and other participants and attendees at the symposium for their feedback. Most importantly, she wishes to thank Jeffrey Sheehan and all of the editors and staff of the journal who have made an immeasurable contribution to this article through their thoughtful suggestions and diligent cite-checking. 298 VAND. J. ENT. & TECH. L. [Vol. 16:2:297 the transition to Broadway. This Article explores the origins of these conflicting norms and their ongoing relevance to a relatively new relationship between Hollywood and Broadway characterizedby a flow of intellectual property from screen to stage. It acknowledges that while measured accommodations may be necessary to allow the corporate owners of films and television shows to reinvent their properties on Broadway, there is good reason to avoid a wholesale change to industry norms in order to preserve the collaborative creative culture of US theater. TABLE OF CONTENTS 1. PLAYERS, PLAYWRIGHTS, AND PLOTS ................................. 304 II. HOLLYWOOD ON THE RIALTO ............................................. 312 A . E nter, R oaring.............................................................. 312 B. Battle of the Norms: Broadway, Hollywood, and the FranchiseProperty ....................................................... 318 1. Rights and Ownership ....................................... 322 2. Creative Controls and Approvals ...................... 324 3. Ongoing Production Rights ............................... 328 4. Dramatists' Compensation ................................ 331 5. Other Terms and Conditions ............................. 333 III. THE SHOW M UST Go ON .................................................... 335 A. Development: A Rocky Road ......................................... 335 B . Collaborators ................................................................ 339 C. The Business of Show Business .................................... 342 D. Broadway's Unique Identity ......................................... 346 IV . CON CLU SION ..................................................................... 351 OVERTURE In her article, "The Invention of Common Law Play Right," Jessica Litman observes the contrast between the typical function of "the American version of copyright law" which, she asserts, ''encourages [creators] to assign their copyrights to intermediaries, who are motivated by potential profits to disseminate the works to the public," and the case of the American dramatist' who "keeps her copyright, rather than assigning it."2 1. This Article uses the term "playwright" to refer to an author of a dramatic play, a work without song and music as an intrinsic part of the dramatic text. See Playwright Definition, Dictionary of Occupational Titles (4th ed. 1991), available at 1991 WL 647050. It uses "authors" 2014] ONCE MORE UNTO THE BREACH For producers and creative collaborators in the American live-theater3 industry, this distinction is not controversial for the most part.4 The theater business operates almost entirely on a freelance, independent-contractor model of employment, where individual to connote the creators of a so-called "dramatico-musical play," a text created for performance on the legitimate stage which includes a score and in which music and song are intrinsic to the text and the expression of plot, character, emotion, and narrative. See Author Definition, Dictionary of Occupational Titles (4th ed. 1991), available at 1991 WL 645993. Musical authors include the bookwriter, composer, and lyricist. See Writers Definition, Dictionary of Occupational Titles (4th ed. 1991), available at 1991 WL 647042. To refer generally to all authors who write for the legitimate theater, this Article uses the term "dramatists." See PlaywrightDefinition, supra. 2. Jessica Litman, The Invention of Common Law Play Right, 25 BERKELEY TECH. L.J. 1381, 1382 (2010) [hereinafter Litman, Common Law Play Right] (noting the "stark contrast" between an American playwright's ownership of her copyright which vests in the playwright control of all licensing and exploitation of the work, and those of other creators). Litman further distinguishes dramatists from other authors in their ability to assert enforceable rights to attribution and integrity and that third parties contributing "significant creative expression" to productions of plays "have added no authorship and should receive no copyright protection for their additions." Id. at 1382-83 (citing numerous treatises and newspaper articles discussing, and court cases finding, that individuals who collaborate in the creative process of mounting a production of a play script have no claim to copyright in their contributions to the live production). 3. This article uses the customary American spelling of "theater" in text written by the author, but respects the customary Canadian, British, and European spelling of "theatre" where it appears in company names and in quotes from other sources. Compare Theater, OXFORD ADVANCED AMERICAN DICTIONARY, http://oaadonline.oxfordlearnersdictionaries.com/ dictionary/theater (last visited Feb. 18, 2014), with Theatre, OXFORD DICTIONARIES, http://www.oxforddictionaries.com/us/definitionenglish/theatre?q=theatre (last visited Feb. 18, 2014). 4. For the most part, the copyright ownership structure in theater is well-settled as a matter of practice, but there have been challenges by certain creative collaborators, including performers, directors, and dramaturgs. See Litman, Common Law Play Right, supra note 2, at 1423 (noting that directors and other collaborators have asserted copyright ownership of their contributions, and the fact that some of these disputes have led to litigation, but most have settled); Jesse Green, Exit, Pursued by a Lawyer, N.Y. TIMES (Jan. 29, 2006), http://theater.nytimes.com/2006/01/29/theater/newsandfeatures/29gree.html (reciting facts of copyright claims by director against author and producer who presented productions of a new play following his dismissal as infringing on his copyright as a director as well as claims by directors against productions that incorporated a substantial part of their work without compensation or attribution, and response of Dramatists Guild); see also